This volume contains the German National Reports on Public Law presented at the XVIIth Congress of the International Academy of Comparative Law, Utrecht 2006.

The articles provide an overview over recent developments and new issues in both European Constitutional and German Public Law from a German perspective and offer an in-depth analysis of the legal issues discussed.

The book offers scholars as well as practitioners a sound basis for studies on a wide range of current and interesting issues in the field of comparative law.

Inhaltsangabe

"II. The Concept of Precautionary Action (S. 182-183)

1. Material Content and Limits of the Precautionary Principle in German Law

For many years the necessity to reflect on the conditions and limits of the precautionary principle has become apparent.10 Being a binding, but rather abstract legal concept it has been adapted to many different circumstances and largely depends on its concrete realization through various statutes.11 § 4 of the legal expert draft of a General Part of an Environmental Code (Umweltgesetzbuch – Allgemeiner Teil – Entwurf – UGB-AT-E) defines the precautionary principle as the requirement to strive towards precluding preventable or unforeseeable environmental degradation by adequate measures, in particular by long-term planning and by emission limitations according to the technical state of the art.

12 § 5 (1) of the Draft of the Commission on the Creation of an Environmental Code (UBG-KomE) in a more all-encompassing way maintains the necessity to prevent or reduce risks to the environment and human health, in particular by farsighted measures, by planning and by adequately applied technical measures.

13 § 5 (2) states that “precaution serves the protection of sensitive constituents of the balance of nature”. 14 Although these draft laws have not been enacted yet, they provide a good basis for understanding the nature of the precautionary principle.15 From a scientific point of view, risks are assessed by multiplying the probability of damage by the severity of that damage.16 In German law there is a discussion whether the precautionary principle should only be understood as precaution against risks or additionally as requiring precautions to ensure the preservation of resources, which is related to the term “sustainable development”.

Risk precaution basically means shifting the classical notion of danger prevention towards areas where a danger does not yet exist, although it appears very hard in practice to differentiate between the two situations. Some authors identify a certain tendency of police law, which traditionally has dealt with dangers, to increasingly adopt the structure of risk administration. According to a statement of Di Fabio, “the great ‘softener’ of the precautionary principle has for a long time infiltrated the field of danger prevention”. Others state that the precautionary principle does not aim at achieving something other than danger prevention, but that it requires different instruments and follows different categories."

Inhaltsverzeichnis

Title Page

4

Copyright Page

5

Preface

6

Table of Contents

8

Constitutional Principles for Europe*

9

I. General Issues

9

1. The Subject Matter

9

2. National and Supranational Principles: On the Question of Transferability

11

3. Constitutional Principles in View of Varying Sectoral Provisions

13

II. Founding Principles of Supranational Authority

15

1. Equal Liberty

15

2. The Rule of Law

18

3. Democracy

25

a) Development and Basic Features

25

b) The Principle of Democracy and the Institutional Structure

31

c) Transparency, Participation, Deliberation and Flexibility

34

d) Supranational Democracy: An Evaluation

38

4. Solidarity

40

III. Concluding Remarks

42

The Emergence of European Constitutional Law

44

I. Introduction

44

II. Starting Point: The Case Law

47

III. Fundamental Objections

49

IV. A Functional Approach?

53

V. The Case for Further Constitutionalization

59

VI. The Role of the European Convention on Human Rights

62

VII. Conclusions

65

The Legal Position of Migrants GermanReport

70

Introduction: Who Qualifies as Migrant in the German Context?

71

1. The Structure of Legal Regulation of Migrants Status: the Emergence of a Multi-Level System of Migration Law

73

1.1. Current Dynamics

73

1.2. German Migration Laws, according to their Rank within the Legal Order

74

1.2.1. Constitutional Law

74

1.2.2. Parliamentary Legislation

75

1.2.3. Rule-Making by the Federal Government

75

1.2.4. Rule-Making by the Länder Governments

76

2. Legal Conceptions Used in National Legislation: Alien as the Basic Concept of German Migration Law

77

2.1. Aliens

77

2.2. Union Citizens

77

2.3. Refugees

78

2.4. Migrant Workers

78

2.5. Illegal Residents

79

3. Acquiring the Status of Migrant: a Plurality of Residence Permits

79

3.1. The Types of Residence Permits Under the Residence Act

79

3.2. Administrative Procedures and Legal Review

82

3.3. The Main Groups of Migrants in Germany, according to their Legal Status

84

3.3.1. Union Citizens and their Relatives

84

3.3.2. Long-Term Residents and their Relatives

86

3.3.3. Migrant Workers of Turkish Nationality and their Relatives

89

3.3.4. Admission for Purposes of Employment

91

3.3.5. Persons with Refugees Status or Other Forms of InternationalProtection